IS PORNOGRAPHY PROTECTED BY THE FIRST AMENDMENT?

There is a good deal of misinformation concerning whether or not pornography is protected as free speech by the first amendment of the constitition. The level of misinformation has never been more clear than recently when I was having a conversation with a sitting Arkansas judge who when asked about the topic replied that it was indeed protected speech. The Supreme Court of the United States and Arkansas law would beg to differ with him.TERMINOLOGY First of all, we have to make sure we are using the correct terminology. While the words pornographic and obscene might be thought of as two words describing the same thing, and in many cases they do, this is not always the case. The term “pornography” is a generic, not a legal term. Pornography” derives from the Greek (harlot, and graphos, writing). Pornography is defined by websters as: “1: a description of prostitutes or prostitution 2. a depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.” Webster’s Third New International Dictionary [Unabridged 1969]… The term “obscenity” on the other hand is a strictly legal term, as used by the supreme court and Federal and local governments to define material that is generally not legal.THE HISTORY In 1973 a case came before the US Supreme Court that would establish the basis for defining obscenity. In this case Marvin Miller, the operator of a mail order pornography business in California, was convicted of an obscenity violation when he sent out a mass mailing advertising the material he was selling. The complaint was filed when the unsolicited brochures were sent to a restaurant in Newport Beach where they were opened by the manager and his mother. In the 5-4 Miller v. California decision (413 U.S. 15), the supreme court laid down the criteria for exactly what is obscenity by establishing what is commonly known as the Miller Test. In this test the following three questions are asked:

Would the average person, applying contemporary community standards find that the material:

So while the court does not come out and explicitly define obscenity word by word and image by image, they give some excellent guidelines for identifying obscenity.BREAKING IT DOWN

Let's take a look at this test one piece at a time. First:The average person, applying contemporary community standards. This is the most critical part of the entire decision and while the rest of the Miller test is fairly rigid, this part of the test is subject to change both by location any by time. The court realizes that standards change over time, for example some language and images that might be “acceptable” and shown on broadcast TV now would certainly have not been acceptable in the 1950's. The court is taking into account the moral degredation of society over time. How are community standards determined? The most definitive way is by looking at the laws which have been enacted by the elected representatives of the community. Some states/cities have very stong obscenity laws and go into great detail to define what is considered obscenity in that community. The obscenity laws in places like Arkansas and Utah and many other states fits this description. Alaska and New Mexico on the other hand have no obscenity laws what so ever. When taken as a wholeappeals to the pruient interests in sex What does the word pruient mean? Websters defines it as: marked by or arousing an immoderate or unwholesome interest or desire; especially: marked by, arousing, or appealing to sexual desire. So taken as a whole (not just one small part, word, suggestion) arouses unwholesome sexual desire.Would the average person find the material depicts or describes:

sexual conduct in a patently offensive way?

AND Would a reasonable person find the material:as a whole, lacks serious literary, artistic, political or scientific value? Chief Justice Warren E. Burger, writing for the majority, included the following list of what may be "patently offensive": "Representations or descriptions of ultimate sex acts normal or perverted, actual or simulated." "Representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals." And, for the second part, the material has no redeeming qualities about it other than for sexual stimulation. It is not intended to be a scientific study into the sexual positions of some remote Aboriginal tribe. It cannot be considered a great literary work of art. It is not meant to be used as a sexual self-help guide.WHAT IT ALL MEANS The Miller test is critically important because although almost every state and even the federal government has laws which limit or outlaw obscenity, we depend upon the Miller test to define obscenity for us. As it turns out, obscenity as defined by the Miller test ultimately comes down to the state and local laws which many times explicitly outline our community standards.

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